Citation Nr: 0710416
Decision Date: 04/11/07 Archive Date: 04/25/07
DOCKET NO. 03-12 085 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUES
1. Whether new and material evidence has been received to
reopen the claim of entitlement to service connection for
right wrist disorder.
2. Entitlement to service connection for a claimed right
shoulder disorder.
3. Entitlement to service connection for a claimed right
hand disorder.
4. Entitlement to service connection for claimed post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran first served on active duty from October 1968 to
October 1972, including in the Republic of Vietnam from
October 1969 to September 1970. He also had a reported
period of active duty that extended from August 1978 to
August 1984, with a notation of prior total active service
reflecting earlier unverified active service in excess of 3
years. The veteran in this regard has reported that his
second period of active service began in April 1975.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a July 2002 rating decision by the RO.
The issues of whether new and material evidence has been
received to reopen the claim of service connection for right
wrist disability, as well as the issues of service connection
for right shoulder disability and for right hand disability
are addressed in the REMAND portion of this document and are
being remanded to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran is not shown to have had active service that
included any identified as involving combat with the enemy
during period of active service.
2. The veteran has failed to provide specific information
that would permit verification of any claimed stressor event
or other incident in service that would support a diagnosis
of PTSD.
CONCLUSION OF LAW
The veteran does not have a disability manifested by PTSD due
to disease or injury that was incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002);
38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist
Prior to consideration of the merits of the veteran's appeal,
the Board must determine whether VA has met its statutory
duty to assist the veteran in the development of his claim of
service connection for PTSD. 38 U.S.C.A. §§ 5103, 5103A; 38
C.F.R. § 3.159.
In August 2001, the RO informed the veteran that in order to
establish service connection for a particular disability,
there had to be competent evidence of current disability
(generally, a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
The RO notified the veteran and his representative of the
following: (1) the information and evidence not of record
that was necessary to substantiate the veteran's claims; (2)
the information and evidence that VA would seek to provide,
such as records held by Federal agencies; (3) the information
and evidence that the veteran needed to provide, such as
employment records and records of his treatment by private
health care providers; and (4) the need to furnish VA any
other information or evidence in the veteran's possession
that pertained to his claims. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
However, the RO stated that it was ultimately the veteran's
responsibility to make sure that it received all of the
requested records which weren't in possession of the Federal
government.
The RO told the veteran where to send the
information/evidence and set forth time frames for doing so,
as well as the potential consequences for failing to do so.
It also notified him of what to do if he had questions or
needed assistance and provided a telephone number, computer
site, and address where he could get additional information.
Not only did the foregoing notices comply with the
requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. §
3.159, the Statement of the Case (SOC) and the Supplemental
Statements of the Case (SSOC's) set forth the text of those
laws and regulations. Moreover, the SOC and SSOC's notified
the veteran and his representative of the evidence which had
been obtained in support of the veteran's appeal.
Following such notice, the RO granted the veteran additional
time to develop the record; and thereafter, the RO
readjudicated the veteran's appeal. Thus, the veteran has
had ample opportunity to participate in the development of
his appeal.
In reviewing this record, the Board is aware of the need to
notify the veteran that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. See Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006). However, the absence of such
notification is not prejudicial in this case.
Where, as here, service connection is denied, no disability
rating or effective date will be assigned. Thus, the need to
notify the veteran that a disability rating and an effective
date for the award of benefits is effectively moot.
After reviewing the record, the Board finds that VA has met
its duty to assist the veteran in the development of evidence
necessary to support his claim. It appears that all relevant
evidence identified by the veteran has been obtained and
associated with the claims folder. In this regard, he has
not identified any further outstanding evidence (that has not
been sought by VA), which could be used to support his claim.
Given the efforts by the RO to develop the record, there is
no reasonable possibility that further development would lead
to any additional relevant evidence with respect to his claim
of service connection for PTSD. As such, there is no
prejudice to the veteran due to a failure to assist him with
that claim. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (discussing prejudicial error).
Therefore, further action is unnecessary in order to meet
VA's statutory duty to assist the veteran in the development
of that claim. See, e.g., Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands that would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the appellant are to be avoided). Accordingly, the Board
will proceed to the merits of the appeal.
II. Facts and Analysis
Service connection connotes many factors, but basically, it
means that the facts, shown by the evidence, established that
a particular disease or injury resulting in disability was
incurred coincident with active military, naval, or air
service, or, if preexisting such service, was aggravated
therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
In particular, service connection for PTSD requires medical
evidence diagnosing the condition in accordance with 38
C.F.R. § 4.125(a), i.e., a diagnosis which conforms to the
criteria set forth in the Diagnostic and Statistical Manual
of the American Psychiatric Association, 4th edition (DSM-
IV); a link, established by medical evidence, between the
current symptoms and an inservice stressor; and credible
supporting evidence that the claimed inservice stressor
actually occurred. 38 C.F.R. § 3.304(f).
In this case, the veteran's VA outpatient treatment records
do include documents that report the diagnosis of PTSD. In
such cases, the sufficiency of the claimed in-service
stressor is presumed. Id. at 144. Nevertheless, there must
be credible evidence that the claimed in-service stressor
actually occurred. Id.
While verification of the associated stressor, does not
require corroboration of every detail, the evidence must at
least imply the veteran's personal exposure. Suozzi v.
Brown, 10 Vet. App. 307, 311 (1997); see also, Pentecost v.
Principi, 16 Vet. App. 124 (2002).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the conditions or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the inservice stressor. Id.
If requested by VA, the veteran must provide enough
information to identify and locate the existing records,
including the custodian or agency holding the records; the
approximate time frame covered by the records; and, in the
case of medical treatment records, the condition for which
treatment was provided.
In the case of records requested to corroborate a claimed
stressful event in service, the veteran must provide
information sufficient for the records custodian to conduct a
search of the corroborative records. 38 C.F.R. § 3.159
(c)(2)(i).
Although the veteran had service in the Republic of Vietnam,
it is not established that he actually engaged in combat with
the enemy.
His service personnel records show that he was a truck driver
and that he did not receive any awards or decorations, such
as the Combat Action Ribbon or Purple Heart Medal, indicating
his participation in combat. Moreover, he has not submitted
any other evidence, such as statements from former fellow
service members attesting to such participation. He has
submitted photographs and other unidentified documents, but
these alone provide no specific information pertinent to his
claim.
In this regard, the RO has made several requests (see, e.g.,
letters dated in August and October 2001) to the veteran for
information concerning his claimed stressors. However, the
veteran has consistently responded with very general
information, stating that he is unable to remember the
date(s) or location(s) or name(s) of personnel involved in
his stressors. Moreover, he states that he has been unable
to locate any former fellow service members who could help
verify his stressors.
During a VA psychiatric consultation in February 2001, the
veteran reported that, while serving in Vietnam, he had lost
two trailers that were blown up by land mines. In the SOC,
the RO specifically noted that the veteran had not provided
enough detailed information to permit verification.
During VA psychiatric treatment in September 2001, the
veteran acknowledged that he needed the names, dates and
places concerning his stressors. Moreover, during
psychiatric treatment in November 2002, it was noted that the
claim had been denied primarily due to the lack of verifiable
stressors. In this regard, the veteran stated that he had
been trying to recall the places where he served in the
Republic of Vietnam.
Thus, the veteran is aware of the information and evidence
necessary to corroborate a stressor in order to support his
claim. To date, however, he has not failed to provide such
information that would enable VA to undertake any meaningful
stressor verification.
Absent specific information to permit verification of any
stressor event in this case, the criteria for the grant of
service connection for PTSD is not met at this time.
Accordingly, the appeal to this extent must be denied.
ORDER
Service connection for claimed PTSD is denied.
REMAND
The veteran is also seeking service connection for right
wrist, right shoulder and right hand disorders.
The veteran filed his original claim of service connection
for right wrist disorder that was denied by the RO in June
1987.
The veteran was notified of that decision, as well as his
appellate rights; however, a Notice of Disagreement was not
received with which to initiate an appeal.
Accordingly, that decision became final under the law and
regulations then in effect. 38 U.S.C. § 4005 (1982); 38
C.F.R. §§ 19.192 (1986). The veteran now requests that his
claim of service connection for right wrist disability be
reopened.
In order to successfully reopen a previously and finally
disallowed claim, the law requires the presentation of a
special type of evidence-evidence that is both new and
material.
VA must notify the veteran of the evidence and information
necessary to reopen the claim, as well as the evidence and
information necessary to establish his entitlement to the
underlying claim for the benefit sought by the veteran. Kent
v. Nicholson, 20 Vet. App. 1 (2006).
In addition, VA must notify the veteran of the evidence
necessary to substantiate that element or elements of service
connection that were found insufficient in the previous
denial. Id. To date, the veteran has not been sent such
notice.
A careful review of the service medical records show that the
veteran sustained injuries of his right hand, right wrist and
right shoulder. In May 1971, the veteran sustained an
abrasion of the knuckles on his right hand. In June and July
1972, following a motor vehicle accident, he was treated for
a laceration of the right hand. At that time, a piece of
glass was surgically removed from his right wrist.
The service medical records also show treatment during his
second period of active duty. In August 1976, he was seen by
the Physical Therapy Service, in part for a two month history
of a right shoulder injury. In September 1979, he was
treated for right shoulder strain.
In July 1977, the veteran was treated for paresthesia on the
right radial surface of his forearm, and in July 1979, the
veteran experienced pain and numbness when he was struck on
the right wrist by a piece of metal. In August 1982, the
veteran was issued a permanent profile due to a post-
traumatic symptomatic neuroma on the right median nerve at
his wrist.
The medical records dated since service show that the veteran
has been treated for complaints involving his right hand,
right wrist and right shoulder. For example, in November
1990, C. H., M.D., reported that the veteran had arthritis in
his right shoulder.
In June 2000 and January and July 2001, the X-ray studies of
the right hand revealed multiple abnormalities, including
osteophyte formation at the metacarpal and interphalangeal
joints and mild degenerative changes at the first metacarpal.
During consultation with the VA Rheumatology Service in July
2001, Heberden's nodes were reported on the veteran's hands.
Despite the foregoing injuries in service and the current
findings, the veteran has not been examined VA.
In November 2003, following the issuance of the most recent
SSOC, the veteran submitted additional evidence in support of
his appeal. However, he did not waive his right to have such
evidence first considered by the RO. 38 C.F.R. § 20.1304
(2006).
Finally, with respect to the claims of service connection for
right hand, right wrist and right shoulder disorder, the
veteran has not been notified of the potential disability
ratings and effective dates should service connection be
granted. Dingess/Hartman.
Accordingly, these remaining matters are REMANDED to the RO
for the following actions:
1. The RO undertake to notify the
veteran of VA's duties to assist him in
the development of his claims for service
connection for disabilities of the right
hand, right wrist, and right shoulder.
38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R.
§ 3.159. In so doing, inform him of the
potential disability ratings and
effective dates should service connection
be granted. Dingess/Hartman.
With respect to the issue of whether new
and material evidence has been received
to reopen a claim of service connection
for right wrist disability, notify the
veteran of the evidence and information
necessary to reopen such a claim, as well
as the evidence and information necessary
to establish his entitlement to the
underlying claim for right wrist
disability. Kent.
2. The RO then should schedule the
veteran for a VA orthopedic examination
to determine the nature and likely
etiology of the claimed right hand, right
wrist and right shoulder disorders. All
indicated tests and studies must be
performed, and any indicated
consultations must be scheduled.
The claims folder must be made available
to the examiner for review, and the
examiner must verify that the claims
folder has, in fact, been reviewed.
The examiner must also render an opinion
as to whether it is more likely than not
(i.e., probability greater than 50
percent), at least as likely as not
(i.e., probability of 50 percent), or
less likely than not (i.e., probability
less than 50 percent) that the veteran
has current right hand, right wrist or
right shoulder disability that is due to
any document event or other incident of
his period of active service. The
rationale for all opinions must be set
forth in writing.
3. Following completion of all indicated
development, the RO should undertake
review the remaining claims in light of
the evidence of record.
If any benefits sought on appeal is not
granted, then the veteran and his
representative must be furnished with an
SSOC and afforded an opportunity to
respond thereto.
Thereafter, if indicated, the case should be returned to the
Board for the purpose of appellate disposition.
The veteran has the right to submit any additional evidence
and/or argument on the matters the Board has remanded to the
RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs